U.S. Hits 5th Year in a Row With Under 30 Executions
By Maryland Criminal Defense Attorney Oleg Fastovsky of Oleg Fastovsky Attorney at Law
For a fifth straight year in the United States, fewer than 30 people were executed. Additionally, less than 50 new death sentences were handed out, continuing the recent trend in a decline in capital punishment throughout the country. In 2019, states executed 22 prisoners, making it the second fewest total in nearly three decades.
A History of the Death Penalty
The death penalty in the United States dates back to the days of the Jamestown colony. Britain was a major influence in the implementation of capital punishment in the United States, as it was a common practice at the time throughout Europe. The first recorded public execution took place in 1608, with the victim being Captain George Kendall, who was found to be a Spanish spy. The death penalty was a public event at the time, with executions often taking place in town centers.
This remained the case until 1834, when Pennsylvania became the first state to move executions out of the public eye and into correctional facilities. Shortly after, Michigan became the first state to place severe restrictions on the use of the death penalty, abolishing it for all crimes except treason. Rhode Island and Wisconsin would soon follow, becoming the first states to abolish the death penalty altogether.
In the twentieth century, the movement to abolish the death penalty gained further traction, with an additional six states completely outlawing the death penalty between 1907 and 1917. However, the death penalty gained more steam in the 1930’s, as many criminologists argued that it was a necessary measure in society to prevent crime. Throughout the 1930’s, an average of 167 executions took place each year, more than any other decade in the history of the United States.
What Constitutes a Death Sentence Today
Nowadays, in addition to state-imposed death penalties, the federal government allows capital punishment for federal offenses, such as murder of a government official, kidnapping resulting in death, and running large scale drug enterprises. The number of eligible offenses under the death penalty was greatly expanded in 1994 under that year’s Federal Death Penalty Act, allowing for about 60 offenses in total. Prisoners sentenced to federal capital punishment are typically held in Terre Haute, Indiana. There are roughly 60 prisoners currently being held for federal execution. However, only three executions have been carried out in the modern era — with the last one occurring in 2003.
Out of the 22 executions that took place in 2019, twenty of them took place in five southern states, with alone Texas carrying out 9. Other participating states include Alabama, Georgia, and Tennessee, with three executions each, followed by Florida with two executions, and lastly, South Dakota and Missouri — with one execution each. As more and more states continue to eliminate capital punishment from their legislation, state executions have become more and more concentrated.
In 2019, executions were very much geographically isolated. 91% of executions took place in the south, and 41% of executions took place in Texas alone. This also marks the fifth straight year that no state west of Texas has enforced an execution.
25 states in the United States still allow the death penalty, while 21 states have abolished it entirely. The remaining four states; Pennsylvania, Colorado, California, and Oregon, have Governor-imposed moratoriums in place that suspend the ability to carry out death sentences. More than one-third of death row prisoners in the United States exist in these four states, with governors saying that no executions will take place.
Possible Reasons for the Decline in Executions
There are many potential explanations for why capital punishment has been on the decline in recent years. For instance, public support for the death penalty is currently low. As of 2020, only 54% of Americans are in favor of the death penalty, compared to 78% in 1996, when far more executions were taking place. Additionally, 60% of Americans prefer the sentencing of life without parole to the death penalty, marking the first time that this has taken place in U.S. history.
Along with a decline in executions, the number of death sentences handed out are continuing to decline as well. Since its peak of over 300 death sentences per year in the 1990s, new death sentences have fallen by more than 85%. 2019 was no exception to this trend, as it continues a ten-year trajectory with a decrease in new death sentences ordered.
Some people may be confused as to why there are more death sentences issued yearly than executions, and that is because death sentencing is a long and intense process. On average, the amount of time spent between a sentence being issued and an execution taking place has increased since the mid-1980’s. In 1984, the average death row prisoner had roughly 74 months between sentencing and execution.
By contrast, the average prisoner in 2017 spent about 243 months on death row prior to execution. Much of this is due to the severity of the punishment at hand. When states decide to issue the death penalty, the pressure to make sure that the person in question is guilty is immense. Additionally, there is a lengthy appeal process that often involves many different stages, such as the direct appeal, state post-conviction, and federal habeas corpus.
Changes to Capital Punishment Laws
In recent news, New Hampshire became the 21st state this year to abolish the death penalty, doing so in May 2019 through its state Legislature. Additionally, more news regarding the death penalty came to light in May, as the Justice Department found that the FDA cannot regulate lethal injection drugs. This stance clears up a long-running struggle between the FDA and the state of Texas, when an injunction was placed that blocked the importation of sodium thiopental. Sodium thiopental is used as a part of a three-drug cocktail that is the most recent protocol for death penalties in about two dozen states. This blend of drugs is administered in three steps. First, a barbiturate is given that acts as a sedative and painkiller; sodium thiopental is commonly used here. Second, a neuromuscular blocking drug is administered, resulting in paralysis throughout the muscles. Lastly, a lethal dose of potassium chloride is administered to stop the heart. The controversy surrounding the use of sodium thiopental is due to its short-lasting effect. Due to this, it is possible that the drug could wear off prior to the administration of potassium chloride, a drug that can be excruciatingly painful unless completely sedated.
Additionally, California Governor Gavin Newsom stated that he was halting all executions in the state, joining Colorado, Oregon, and Pennsylvania as states with governor-imposed moratoria on executions. This is especially significant due to the fact that California has the most prisoners on death row throughout the U.S., with roughly 727. This far surpasses any other state, with Florida being second at 348, less than half of California’s total.
Other significant changes in state legislation include Oregon passing Senate Bill 1013, which narrows the classes of crimes that are eligible for capital punishment. Oregon is another state that has had a governor-imposed moratorium, enacting theirs in 2011. The new legislation states that the death penalty may only be imposed in cases that include acts of terrorism resulting in at least two or more deaths, premeditated murder involving children younger than 13, premeditated murder of police or correctional officers, and prison murder by inmates who are already serving time for aggravated murder.
This is a significant reduction in death-eligible categories of aggravated murder in Oregon, reducing it from 19 to four. Significant categories that were removed include the exchange of money for murder, torturing someone to death, and using murder to hide a crime. Senate Bill 1013 also places restrictions on questions Oregon jurors must answer in death sentencing cases, removing one question regarding whether the person in question is likely to be dangerous in the future.
Alternatively, Alabama and Tennessee both passed new legislation that increases the overall amount of crimes punishable by death. Alabama passed HB59 in May of 2019, adding on-duty first responders to the list of murder victims that allow for capital punishment, joining on-duty law enforcement officers and prison guards. Tennessee made changes by adding the sale or distribution opiates with premeditation and intent to kill as grounds for life without parole, or the possibility of the death penalty.
After five straight years with less than 30 executions carried out, and less than 50 death penalty convictions, it is expected that this trend will continue through 2020. As death sentences become more scarce and time spent between sentencing and execution continues to grow, fewer executions will likely be carried out each year.
By Maryland Criminal Defense Attorney Oleg Fastovsky of Oleg Fastovsky Attorney at Law